Part 3 – Miscellaneous and General.
Computer system
Section 114 – Automated computer system
477.This section authorises the Keeper to operate the registers provided for under this Act by means of an automated computer system. The effect is to facilitate the operation of an all-electronic register.
Registration of electronic documents
Section 115 – Competence of registration of electronic documents
478.This section deals with how the Act interacts with section 9G of the Requirements of Writing (Scotland) Act 1995. Subsection (1)(d) of that section provides that in general it is not competent to record or register an electronic document in a register under the management and control of the Keeper of the Registers of Scotland unless certain conditions are met. One of those conditions is that the electronic signature is of such form and of such type as is prescribed by the Scottish Ministers in regulations.
479.As the current regulations prescribe more stringent requirements than the Act’s definition of “authenticated”, this section of the Act provides that those conditions do not have to be met in respect of registration in the Register of Assignations or the Register of Statutory Pledges.
Good faith
Section 116 – Good faith
480.This is a general provision relating to good faith provisions in the Act (see sections 10 – 13, 53 – 55, 93 and 108). The effect is that, where an issue arises as to whether or a person is in good faith for the purposes of a provision in the Act, then it is for the person asserting a lack of good faith to prove that the other person was not in good faith.
Review of the Act
Section 117 – Review of Act
481.This section requires a review of the operation of the Act to be undertaken by the Scottish Ministers, and a report to be prepared on that review. The review must be undertaken after five years have elapsed from the day that sections 1 and 42 come into force (or, if they come into force on different dates, from the earlier of those dates). The report must, in particular, set out (i) the impact of allowing the debtor to waive the right to assert defences under section 14, (ii) how well the provisions relating to statutory pledges are working in relation to sole traders and small businesses, and (iii) any steps that the Scottish Ministers propose to take as a result of the findings of the review. The report must be published and laid before the Scottish Parliament as soon as reasonably practicable after the end of the five year review period.
General
Section 118 – Regulations
482.Subsection (1) of this section makes provision about the powers that attach to any power to make regulations under the Act. In particular, different provision can be made for different purposes. This would allow, for example, different types of pledge enforcement notice to be prescribed for different types of encumbered property or different types of debtor.
483.Subsections (2) to (4) make provision about the level of parliamentary scrutiny to which regulations under the Act are subject. For details of the negative and affirmative procedure, see, respectively, sections 28 and 29 of the Interpretation and Legislative Reform (Scotland) Act 2010.
484.Subsection (5) provides that this section does not apply to commencement regulations.
Section 119 – Ancillary provision
485.This section provides for a general regulation-making power that enables the Scottish Ministers to make provision for consequential and other incidental matters in order to give full effect to the Act.
486.The power in this section allows the Scottish Ministers to amend any enactment, including the Act. For the meaning of “enactment” see schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010.
487.Regulations under this section will be subject to the affirmative procedure where they modify primary legislation (see section 118(3) of the Act). Otherwise, they will be subject to the negative procedure.
Section 120 – Interpretation of Act
488.This is the main interpretation provision in the Act. However, sections 41 and 113 provide for the interpretation of terms used only in Part 1 or Part 2 respectively. See also section 116 of the Act which provides for the effect of a reference in the Act to a requirement for any person to be in good faith.
489.In addition, it should be noted that some terms, such as “document”, “writing” and “person”, will be construed in accordance with schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 unless the context requires otherwise. In particular, it should be noted that the term “writing” will include emailed documents.
490.The meaning of “execution” of a document refers to the Requirements of Writing (Scotland) Act 1995. But it is also possible for the Scottish Ministers to make alternative provision in relation to both this and “
Section 121 – Commencement
491.The provisions in the Act will, except as provided for here, come into force on the day or days appointed by the Scottish Ministers in regulations made for that purpose under this section. Regulations under this section will be laid before the Parliament in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010.
Section 122 – Short title
492.This section provides for the short title of the resulting Act to be the Moveable Transactions (Scotland) Act 2023.
